Practicing Attorneys (Not Sitting Judges) Serving as Mediators: An Innovation from the 1970s

By: Donald L Swanson

The use of practicing attorneys — instead of sitting judges —  to serve as mediators is an early-innovation from Chief Judge Irving Kaufman of the U.S. Second Circuit Court of Appeals.

This innovation occurs, back in the 1970s, amid “wide disagreement” about the effectiveness of attorneys as mediators. Back then, Judge Kaufman’s critics suggest that “only a judge would have sufficient prestige to resolve such disputes.”

Back in those days, Judge Kaufman is concerned about burgeoning caseloads in the Federal courts — particularly the Circuit Courts of Appeals.  So he establishes a mediation program and rejects the idea of sitting judges as mediators.  After all, using sitting judges would only compound the caseload problem he is trying to address.

Judge Kaufman’s way of dealing with the critics is to implement his mediation ideas and then test how those ideas work:

–“Testing under controlled conditions may be the only way to settle questions of this nature,” he explains.

The testing proves, of course, that Judge Kaufman is right: practicing attorneys perform well as mediators.

Today, a similar debate continues in bankruptcy courts:

–Should sitting judges or practicing attorneys be appointed as mediators?

And today’s argument is much the same as back in the 1970s: some believe that “only a judge” has “sufficient prestige” to serve as mediator, especially in some of the larger cases.

–Ok.  Let’s acknowledge that sitting judges can be essential in exceptional cases.  It’s hard to imagine, for example, the effectiveness of the City of Detroit’s proactive mediators without a U.S. District Court Judge wielding judicial authority as lead mediator.

Let’s also acknowledge, moreover, an added consideration in today’s world:  legal fees,

–Today, sitting judges serve as mediators-without-charge to the parties, while attorney mediators expect to get paid.

Editorial Comment

1. Sitting judges as mediators may be well-and-good in a time when bankruptcy caseloads are low and demands on judicial time and attention are low as well.  But the concept probably won’t serve so well during an economic recession, when the demands for usual types of judicial action and attention are pressing.
2. Even in a down-season for bankruptcy (e.g., during an economic boom), bankruptcy judges should focus on utilizing mediation and appointing attorneys as mediators.  Here’s why:

–Mediators need to become well-experienced in their craft, and local attorneys need to become accustomed to and adept at utilizing mediation as a tool for resolving bankruptcy disputes.  Such needs are best-addressed when court workloads are manageable.

–Then, when economic conditions change and case workloads become heavy and burdensome again, mediation will already be ready-to-roll, as explained here: “If I were a Bankruptcy Judge, I’d be Promoting Bankruptcy Mediation Now,”  Part One and Part Two.

[Note:  Historical information and quotations in this article are from a July 1977 Report on Judge Kaufman’s mediation program, authored  by Jerry Goldman for the Federal Judicial Center, titled: “An Evaluation of the Civil Appeals Management Plan: An Experiment in Judicial Administration.”]

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